Reasons

December 6th, 2017

In Dover District Council v CPRE Kent [2017] UKSC 79 the Supreme Court reviewed various statutory rules relating to the provision of reasons for planning decisions, observing that these rules are to be found in subordinate legislation and that it is hard to detect a coherent approach to their development. The three main categories of planning decision are: (i) decisions of Secretaries of State and inspectors, (ii) decisions by local planning authorities in connection with planning permission, and (iii) decisions, at any level, on applications for EIA development.

Special duties arise under the EIA Regulations where an application involves a development which is “likely to have significant effects on the environment by virtue of factors such as its nature, size or location” (an “EIA development”). Regulation 3(4) provides that decision-makers shall not grant planning permission, where the application involves an EIA development, without first taking the environmental information into consideration, and that they must state in their decision that they have done so. Article 6.9 of the Aarhus Convention (Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters), to which the United Kingdom is a party, also requires each party to make accessible to the public the text of certain decisions involving an EIA, along with reasons and the considerations on which it is based.

Where there is a legal requirement to give reasons, what is needed is an adequate explanation of the ultimate decision. The content of that duty should not in principle turn on differences in the procedures by which the decision is arrived at. The essence of the duty, and the central issue, is whether the information so provided by the authority leaves room for genuine doubt as to what it has decided and why.

The Supreme Court rejects the Council’s argument that a breach of the EIA duty alone should be remedied by a mere declaration of the breach. The Council relied on R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920 in which the Court of Appeal remedied a failure to provide a statement of reasons without quashing the decision, by ordering only that the statement be provided. However, in that case it was possible to take the planning committee as adopting the reasoning in the officer’s report which had recommended granting permission.

In view of the specific duty to give reasons under the EIA regulations, it is unnecessary to address the common law position. However, the particular circumstances of this case would, if necessary, have justified the imposition of a common law duty to provide reasons for the grant of permission. Planning law is a creature of statute, but the proper interpretation of the statute is underpinned by general common law principles, including fairness and transparency. It is appropriate for the common law to fill the gaps in the present system of rules, but its intervention should be limited to circumstances where legal policy reasons for it are strong.

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